Wal-Mart Sex Discrimination Case Back in Court

A U.S. court began considering this week whether to uphold a lower court ruling allowing about 2 million current and former female Wal-Mart workers to sue the firm for sexual discrimination as a group.

Wal-Mart Stores Inc, the world’s largest retailer, is asking the Ninth Circuit Court of Appeals in San Francisco to undo class-action certification in what is the largest sexual discrimination lawsuit in the nation’s history.

Class-action lawsuits generally make it easier for groups of plaintiffs to sue well-heeled corporations and have led to large payouts by tobacco makers, oil firms and food companies in the United States.

“One has to sympathize with the Court. This is the largest class-action ever and it’s been heavily litigated and they’re trying to find a way to get to where they want to go,” Brad Seligman, an attorney for the plaintiffs, said outside the federal court after arguments.

The lawsuit argues that female workers were paid less and received fewer promotions at Wal-Mart than male counterparts and that the firm’s corporate structure fostered this gender discrimination and made it pervasive at more than 3,000 U.S. stores.

“This is not ‘Wal-Mart didn’t know what was going on.’ This is conduct that was approved of and acquiesced for years,” Seligman told the full 11-judge panel. The court, which has jurisdiction in nine mostly Western states, has turned down two Wal-Mart appeals.

The suit originated with a Wal-Mart worker named Betty Dukes who sued for sexual discrimination in 2001 with six other plaintiffs in a class-action lawsuit that extended the case to all women who had worked at the company since 1998.

A trial judge certified the case as a class-action matter in 2004.

The plaintiffs are seeking an undetermined amount in lost pay and punitive damages, together with injunctive and declaratory relief, which would require Wal-Mart to rectify the pay and promotion inequities.

Noting the costly punitive damages involved, Wal-Mart attorney Theodore Boutrous Jr. told the court that a stricter standard should be used to determine if the claims have enough in common to be considered as a class for litigation purposes.

Wal-Mart also has argued that establishing a national class is unwarranted because its store managers acted with discretion when promoting workers.

On Tuesday, the Ninth Circuit judges peppered the attorneys with questions on how to adminster back pay, compensate those not adequately promoted and deal with situations where discrimination did not appear to exist.

“Your expert only said it (Wal-Mart’s corporate culture) allows discrimination,” Chief Judge Alex Kozinski said. “Are you saying there was discrimination at all stores?”

“We’re maintaining there was a pattern of discrimination,” responded Seligman.

If the Ninth Circuit upholds its previous orders, Wal-Mart would be left to appeal to the U.S. Supreme Court to reverse the case’s class-action status.